Cairns v. Kozel

Filing 43

MEMORANDUM AND ORDER - Plaintiff's motion for extension of time (Filing 40 ) is granted, and Plaintiff shall have an additional 30 days, until July 16, 2021, to respond to Defendant's pending motion for summary judgment. Plaintiff's renewed motion for appointment of counsel (Filing 39 ) is denied without prejudice to reassertion. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL L. CAIRNS,

8:20CV162

Plaintiff,
MEMORANDUM
AND ORDER

vs.
JAMES KOZEL,
Defendant.

Plaintiff has filed a motion for a 30-day extension of time to respond to
Defendant’s motion for summary judgment. (Filing 40.) The current response date
is June 16, 2021. The court finds the motion for extension of time should be granted.
See Fed. R. Civ. P. 6(b)(1).
Plaintiff has also filed a renewed motion for appointment of counsel. (Filing
39.) “There is no constitutional or statutory right to appointed counsel in civil cases.”
Phillips v. Jasper Cty. Jail, 437 F.3d 791, 794 (8th Cir. 2006). A district court “may
request an attorney to represent” an indigent civil litigant, 28 U.S.C. § 1915(e)(1),
but it has a “good deal of discretion” in deciding whether to do so, Chambers v.
Pennycook, 641 F.3d 898, 909 (8th Cir. 2011). “Relevant criteria for determining
whether counsel should be requested include the factual and legal complexity of the
case, the plaintiff's ability to investigate the facts and to present the claims, and the
presence or absence of conflicting testimony.” Recca v. Pignotti, No. 20-2560, 2021
WL 2285235, at *1 (8th Cir. June 4, 2021) (citing Davis v. Scott, 94 F.3d 444, 447
(8th Cir. 1996)). Upon consideration of these factors, the court concludes that
appointment of counsel is not indicated at this time.
Plaintiff, who is a prisoner at the Omaha Correctional Center, states he has
limited access to the law library and limited knowledge of the law. A lack of legal
training and limited access to a law library do not differentiate Plaintiff from most
pro se prisoner-plaintiffs. Yanga v. Nebraska Dep’t of Corr. Servs., No. 8:19CV420,

2020 WL 6800428, at *2 (D. Neb. Nov. 19, 2020); see Recca, 2021 WL 2285235,
at *2 (“As a prisoner, Recca understandably faced challenges representing himself,
but ‘most indigent prisoners will face similar challenges.’”) (quoting Patterson v.
Kelley, 902 F.3d 845, 850 (8th Cir. 2018)).
Plaintiff also states he has had a learning disability since childhood, but school
records attached to his motion show he graduated from high school in 1994. (See
Filing 39-1.)
Plaintiff’s pleadings, motions, and other filings demonstrate his ability to
conduct discovery and to present his claims in written form.
The pending motion for summary judgment does not raise complex factual or
legal issues. For purposes of the motion, Defendant does not even contest Plaintiff’s
allegations of fact. Defendant instead relies upon his own affidavit and argues that
Plaintiff must produce a countervailing expert opinion to avoid summary judgment.
IT IS THEREFORE ORDERED:
1.
Plaintiff’s motion for extension of time (Filing 40) is granted, and
Plaintiff shall have an additional 30 days, until July 16, 2021, to respond to
Defendant’s pending motion for summary judgment.
2.
Plaintiff’s renewed motion for appointment of counsel (Filing 39) is
denied without prejudice to reassertion.
Dated this 7th day of June, 2021.
BY THE COURT:

Richard G. Kopf
Senior United States District Judge

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